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Statement of IHRDA at the 63rd Ordinary Session of the ACHPR, October 2018: Addressing the interference of AU policy organs in the independence and mandate of the ACHPR

Banjul, 26 October 2018:

Madam Chairperson and Honourable Commissioners of the African Commission for Human and Peoples’ Rights,

Distinguished African State Representatives,

The Institute for Human Rights and Development in Africa wishes to commend the African Commission on Human and Peoples’ Rights for the great work it has done in the promotion and protection of human rights in the last 31 years since its creation. The Commission in many cases has been the last hope for individuals and peoples of Africa who have had their rights trampled upon by powerful State and non-State actors.

In the exercise of its protective and interpretative mandate over the years, the Commission has made many progressive interpretations of the African Charter on Human and Peoples’ Rights and created an African human rights jurisprudence that we are proud of. Notwithstanding the many challenges it has faced in carrying out its duties, the Commission has been able to decide communications brought before it without fear or favour.

However, we are concerned about Decision 1015 of the Africa Union Executive Council reached in June 2018 for the impact it has on the work of the Commission.

This decision outlines that the “independence enjoyed by the African Commission on Human and Peoples’ Rights is only of a functional nature and not independence from the same organs that created the body.” We submit that this is a misunderstanding of international law, as the Commission was not created by AU organs but by a treaty: the African Charter on Human and Peoples’ Rights. Moreover, the Charter guarantees the institutional, functional and personal independence of the Commission and its Commissioners. To be able to carry out its duties effectively, the Commission must work free of all external interference from Africa Union political and policy organs.

The Executive Council Decision also expressed “caution on the tendency of the African Commission acting as an appellate body thereby undermining national legal systems.” This part of the decision is not in tandem with the way the Commission assesses communications brought before it. Article 56 of the African Charter lays down conditions for admissibility that include the exhaustion of remedies at the national level. The Commission in its function does not serve as an appellate body for national court decisions but as quasi-judicial body serving to protect rights that States have failed to protect under the Charter.

We are further concerned by the order of the Executive Council to the Commission to review its criteria for granting observer status to NGOs, and to withdraw the accreditation of the Coalition of African Lesbians (CAL). We are alarmed that the Commission has already started compliance with this by its withdrawal of the observer status of CAL.

We urge Africa Union State Parties to ensure the total independence of the Commission from interference with its work by Africa Union political and policy organs.

We also urge the African commission to stand for its independence and lay down a clear strategy to respond to decision 1015 without fear or favour.

Our African Commission on Human and Peoples’ Rights must be independent.

Thank you.